Protecting Mickey Mouse at Art's Expense

By LAWRENCE LESSIG

Published: January 18, 2003

STANFORD, Calif.

The Supreme Court decided this week that the Constitution grants Congress an essentially unreviewable discretion to set the lengths of copyright protections however long it wants, and even to extend them.

While the court was skeptical about the wisdom of the extension, seven justices believed it was not their role to second-guess "the First Branch," as Justice Ruth Bader Ginsburg put it. As I argued the opposite before the court for my clients, a group of creators and publishers who depend on public domain works, I won't say I agree. But there is something admirable in the court acknowledging and respecting limits on its own power.

Still, missing from the opinion was any justification for perhaps the most damaging part of Congress's decision to extend existing copyrights for 20 years: the extension unnecessarily stifles freedom of expression by preventing the artistic and educational use even of content that no longer has any commercial value. As one dissenter, Justice Steven G. Breyer, estimated, only 2 percent of the work copyrighted between 1923 and 1942 continues to be commercially exploited (for example, the early Mickey Mouse movies, whose imminent entry into the public domain prompted Congress to act in the first place).

But to protect that tiny proportion, the remaining copyrighted works will stay locked up for another generation. Thus a museum that wants to produce an Internet exhibition about the New Deal will still need to find the copyright holders of any pictures or sound it wants to include. Or archives that want to release out-of-print books will still need to track down copyright holders of works that are almost a century old.

This is a problem that the First Branch could fix without compromising any of the legitimate rights protected by the copyright extension act. The trick is a technique to move content that is no longer commercially exploited into the public domain, while protecting work that has continuing commercial value. The answer is suggested from the law governing patents.

Patent holders have to pay a fee every few years to maintain their patents. The same principle could be applied to copyright. Imagine requiring copyright holders to pay a tax 50 years after a work was published. The tax should be very small, maybe $50 a work. And when the tax was paid, the government would record that fact, including the name of the copyright holder paying the tax. That way artists and others who want to use a work would continue to have an easy way to identify the current copyright owner. But if a copyright owner fails to pay the tax for three years in a row, then the work will enter the public domain. Anyone would then be free to build upon and cultivate that part of our culture as he sees fit.

None of the supporters of the copyright extension act should have any complaint about such a provision. All of them argued that they needed the term increased so they could continue to get revenue from their works that supported their other artistic endeavors. But if a work is not earning any commercial return, then the extension is pointless. Of course, there may be people who want to keep their work from passing into the public domain, even if it is not commercially exploited. That's why the tax should be low, and should apply only to work that was published. The privacy and control that copyright law gives authors would thus be assured for as long as Congress deems proper.

This compromise, of course, puts much less work into the public domain than my clients believed that the framers of the Constitution envisioned. But it would nonetheless make available an extraordinary amount of material. If Congress is listening to the frustration that the court's decision has created, this would be a simple and effective way for the First Branch to respond.